\\server05\productn\L\LCA\15-1\LCA107.txt unknown Seq: 1 22-DEC-08 10:15 SEE SPOT EAT, SEE SPOT DIE: THE PET FOOD RECALL OF 2007 By Kate Paulman* When dogs and cats across the country fell inexplicably ill in March of 2007, their human companions became sick with worry. Veterinarians eventually determined contaminated pet food was the source of these illnesses. Mela- mine, an industrial chemical used in cookware, furniture, and industrial fertilizers, contaminated wheat gluten manufactured in China and utilized in many pet food brands in the United States and Canada. This contamina- tion led to a recall of more than 200 brands of pet food—the largest in Amer- ican history. This comment explores the reasons behind the contamination and the ensuing recall. The author identifies inadequate domestic regula- tion as the primary reason behind the contamination and notes these inade- quacies permitted pet food distributors and manufacturers to skirt responsibility during the recall. The comment highlights changes instituted in light of the recall and suggests further changes to the FDA and its regula- tions so that this heartbreaking situation can be avoided in the future. I. INTRODUCTION ......................................... 114 R II. REGULATION OF THE PET FOOD INDUSTRY ........... 115 R A. Federal Pet Food Regulation ........................... 115 R 1. Federal Regulation by the FDA ..................... 117 R 2. Regulation by the AAFCO .......................... 118 R III. THE RECALL ............................................ 119 R A. Recall Timeline ....................................... 119 R B. Reaction of Pet Owners ................................ 121 R C. Reaction During and After Recall by Involved Officials . 123 R IV. CHANGES RESULTING FROM THE RECALL............. 126 R V. CHANGES THAT SHOULD BE IMPLEMENTED .......... 129 R A. What Should Have Been Done During the Recall ........ 130 R B. Changes That Should Be Made in Light of the Recall .... 134 R VI. CONCLUSION ........................................... 139 R * Kate Paulman 2008. Ms. Paulman is J.D. candidate at the University of Mis- souri-Kansas City School of Law. She earned her B.A. in English from Simpson College. She would like to thank her dogs Lucy and Gus for serving as inspiration in choosing her note topic—if something had happened to them, she would have sued, too. [113] \\server05\productn\L\LCA\15-1\LCA107.txt unknown Seq: 2 22-DEC-08 10:15 114 ANIMAL LAW [Vol. 15:113 I. INTRODUCTION Gregory Kontoes did not mean to hurt his best friend.1 Neither did any of the thousands of others who fed their pets contaminated food in 2007.2 But they did. For Kontoes, it was not pretty. His cat George looked like he had been in a fight when he came into his Webster, Massachusetts, home. The big yellow cat was bleeding from the mouth and could barely stand.3 Kontoes worried when the strange behavior continued and took his cat to the veterinarian.4 The veterinarian quickly diagnosed the 12-year-old feline with kidney failure.5 Treatment did not work, and George was euthanized just a few days later.6 “He had lost two pounds,” Kontoes said. “He went down quick. It wasn’t something that came on subtle. He was strong as a tiger.”7 Kontoes later compared the Special Kitty brand cat food he fed George with the list of recalled food and found it was listed as one of the ninety-one brands of cat food re- called in 2007.8 While pet owners felt they had betrayed their friends by feeding them tainted food, the owners themselves may have been betrayed by both the pet food industry and the federal regulatory system. Out- sourcing—manufacturing pet food ingredients in China, for instance— coupled with an inadequate domestic system of regulations led to the largest pet food recall in American history. The recalled food, sold mainly by Canada-based Menu Foods Income Fund (Menu Foods), was made with tainted wheat gluten from China.9 The gluten was contami- nated with melamine, an industrial chemical used in cookware, furni- ture, and industrial fertilizers.10 The recall was announced March 16, 1 Martin Luttrell, Pet Food Woes Causing Grief: Mystery Illness Suspected by Local Pet Owners, Vets, Telegram & Gaz. A1 (Mar. 21, 2007) (available at 2007 WL 5426479). 2 Different sources confirmed different numbers of pet deaths: Menu Foods reported sixteen pet deaths on March 28, while the Veterinary Information Network reported 104 the same day. Associated Press, 104 Deaths Reported in Pet Food Recall, 156 N.Y. Times A13 (Mar. 28, 2007). PetConnection.com set up a self-reporting system for pet owners and counted 4,867 deaths as of May 16. Pet-food Recall: The Scope of the Trag- edy, http://www.petconnection.com/recall/ (last accessed Nov. 8, 2008). 3 Luttrell, supra n. 1. 4 Id. 5 Id. 6 Id. 7 Id. 8 Id. See also U.S. Food and Drug Administration (USFDA), Search for Pet Food Recalls, http://www.accessdata.fda.gov/scripts/petfoodrecall/ (last updated June, 25, 2008) (last accessed Nov. 18, 2008) (One hundred nine brands of dog food were recalled, along with two brands of ferret food and one brand of fish food.). 9 Kristina Dell, Unraveling the Pet-Food Mystery, Time Mag., (April 5, 2007) (avail- able at http://www.time.com/time/nation/article/0,8599,1607483,00.html) (last accessed Nov. 8, 2008). 10 Id. \\server05\productn\L\LCA\15-1\LCA107.txt unknown Seq: 3 22-DEC-08 10:15 2008] SEE SPOT EAT, SEE SPOT DIE 115 2007.11 More than 200 brands of pet food made with the Chinese wheat gluten were affected.12 The effects of this recall are particularly tragic because, at least in part, they could have been avoided, and they are very likely to happen again. For companies in the pet food business, recalls are inevitable, thus there is no excuse for being caught unaware.13 In this case, multi- ple factors, including lax regulations at the federal level and a poor response by the main company involved, came together to create a heartbreaking series of events. Despite the rabid response from Ameri- can pet owners, the industry and regulations remain largely un- changed, setting the stage for another devastating recall in the future. This comment discusses several different aspects of the 2007 pet food recall. First, it looks at how the Food and Drug Administration (FDA) promulgates and enforces pet food regulations. Second, it examines the timeline of the recall. Third, it considers the importance of pets to their owners and why this recall caused more of an uproar than other com- parable recalls. Fourth, it discusses the changes the domestic and Chi- nese regulatory authorities have made since the recall. Finally, this comment suggests new strategies for dealing with pet food regulation and recalls. II. REGULATION OF THE PET FOOD INDUSTRY The American pet food industry is a $13 billion a year business14 regulated on state and federal levels. The large scale of the business, coupled with flaws in an understaffed regulatory agency, compounded the tragic effects of the pet food contamination. A. Federal Pet Food Regulation The FDA, a federal agency within the Department of Health and Human Services,15 works to promote and protect the public health.16 The FDA regulates food ingredients, medical devices, and drugs, among other things, for use by the American public. It is also in charge 11 Mike Sakal, Pet Food Recall Came after Close Call for Family Dog, East Valley/ Scottsdale Trib. (Apr. 5, 2007) (available at http://www.eastvalleytribune.com/story/ 87219) (last accessed Nov. 8, 2008). 12 USFDA, supra n. 8. 13 See Richard S. Levick & Gene Grabowski, Contaminant at the Gate: Crisis Com- munications in the Age of China Recalls, 7-3 Mealey’s Prod. Liab. & Risk 26 (2007) (noting that “[for] some industries, product recalls are inevitable, which means there’s no excuse for being unprepared to master their myriad public challenges”). 14 Claudia H. Deutsch, Makers of Pet Foods Voice Little Worry, 153 N.Y. Times A40 (Dec. 26, 2003). 15 USFDA, FDA Organization, http://www.fda.gov/opacom/7org.html (last accessed Nov. 8, 2008). 16 USFDA, FDA’s Mission Statement, http://www.fda.gov/opacom/morechoices/mis- sion.html (last accessed Nov. 8, 2008). \\server05\productn\L\LCA\15-1\LCA107.txt unknown Seq: 4 22-DEC-08 10:15 116 ANIMAL LAW [Vol. 15:113 of regulating animal food and feed.17 Within the FDA, the Center for Veterinary Medicine (CVM) regulates “animal drugs, animal feeds, food additives and ingredients.”18 The CVM is mostly concerned with ensuring that milk and meat for human consumption are not tainted, and “because of that work and the cooperative efforts of all FDA em- ployees, the United States can boast the safest food supply in the world.”19 The organization is concerned with ensuring food and drugs are safe for animal consumption, but is primarily concerned with the safety of animal byproducts sold for human consumption.20 Pet food is regulated under the Federal Food, Drug and Cosmetic Act (FFDCA).21 The FFDCA prohibits adulterated or misbranded pet food.22 According to the CVM, adulterated food is “food packaged or held under unsanitary conditions, food or ingredients that are filthy or decomposed, and food that contains any poisonous or deleterious sub- stance.”23 Misbranded food is food that has a “false or misleading la- bel” or does not list the name and location of its manufacturer.24 In sum, pet food manufacturers are required to make food that is safe, wholesome, is not contaminated, and is properly labeled.25 The problems with the regulatory system of pet food in America are manifold.